Posted on - Jan 26, 2016

By Catherine Sas, Q.C.

Catherine Sas Q.C.

Canada’s immigration program is made up of several distinct categories: Skilled Worker, Canadian Experience Class, Spousal Sponsorship, Live-In Caregiver, Provincial Nominee Program and Skilled Trades are just a few of Canada’s several immigration categories. Our Immigration laws also provide for temporary status as workers, students and visitors. But personal circumstances don’t always bring people squarely within the criteria for our immigration processes. What can be done when there seems that there is nothing to be done to meet the general criteria for coming to Canada either on a permanent or temporary basis?

The Immigration and Refugee Protection Act (IRPA) sets out the legislative provisions for all of Canada’s immigration programs. As part of this legislative process, there is S. 25 which can overcome any shortcomings to any of the standard criteria for immigrating to Canada. S. 25 of IRPA provides as follows:

Subject to subsection ( 1.2 ), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible – other than under section 34, 35 or 37 – or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada – other than a foreign national who is inadmissible under section 34, 35, or 37 – who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

Section 25 of IRPA provides officers with considerable discretion as to how to deal with immigration applications. This provision gives authority to exempt the application from any criteria if there are sufficient humanitarian and compassionate (H and C) considerations to warrant it. It provides for very wide ranging relief in the immigration process where it can be demonstrated that there are sufficient H and C considerations in the particular case. So what kind of relief can S. 25 provide?

Up until recently, H and C relief was limited to situations where an applicant could provide evidence that they were facing “unusual, undeserved or disproportionate hardship”. On December 10, 2015, the Supreme Court of Canada (SCC) determined in the Kanthasamy decision, that this former test was not appropriate. This was a pivotal decision in setting the legal framework for decision making in H and C cases.

While for many years, the test considered by the Courts for H and C relief depended upon demonstrating unusual, undeserved and disproportionate hardship, in Kanthasamy, the SCC determined otherwise. The Court held that officers should not look at the three adjectives -unusual, undeserved and disproportionate – as discrete and mandatory thresholds in the determination process. Rather, these words should be seen as instructive and not determinative. The SCC held that, in assessing H and C cases, an immigration officer needs to consider and give weight to all relevant H and C considerations in a particular case.

While S. 25 provides immigration officers with wide discretion to overcome obstacles in the immigration process, it is not a catch-all cure for failure to meet standard program criteria. Rather, S. 25 provides for discretionary relief where an applicant can demonstrate that there are sufficient compelling reasons, based on humanitarian and compassionate considerations, that warrant a favourable outcome. The SCC decision in Kanthasamy gives clarity to how officers are to consider all relevant evidence in reaching their decision when considering humanitarian and compassionate factors.

Catherine Sas, Q.C. is a Vancouver immigration lawyer at Sas & Ing Immigration Law Centre in Vancouver, BC Canada. Catherine has been practicing law for over 25 years, and has been voted Vancouver’s Best Immigration Lawyer by the Georgia Straight newspaper for 6 consecutive years.

To learn more about immigrating to Canada, becoming a permanent Canadian resident or bringing your family to Canada, email Catherine Sas or call her at 1-604-689-5444.

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